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COVID-19 Tax and SBA Loan OverviewBlake Christian, CPA/ MBTApril 15, 2020blake.christian@Key COVID-19 Resource Links: Partner PPP Loans: Many more links on last two pagesSmall Business Administration Loans 1. Short-Term Paycheck Protection Program - Max of $10,000,000Eligible businesses: All small businesses, including non-profits, Veterans organizations, Tribal concerns, sole proprietorships, self-employed individuals, and independent contractors, with 500 or fewer employees, or no greater than the number of employees set by the SBA as the size standard for certain industriesMaximum loan amount up to $10 millionLoan forgiveness if proceeds used for payroll costs and other designated business operating expenses in the 8 weeks following the date of loan origination (due to likely high subscription, it is anticipated that not more than 25% of the forgiven amount may be for non-payroll costs)Loan amount is based on the previous year’s monthly average payroll multiplied by 2.5- or $10 million- whichever is less. Payroll cost for the calculation is capped at $100,000 per employeeAll loans under this program will have the following identical features:Interest rate of 1.0%Maturity of 2 yearsFirst payment deferred for six months100% guarantee by SBANo collateralNo personal guaranteesNo borrower or lender fees payable to SBAApplications will be open for small businesses starting April 3RD and April 10th for Self-Employed Individuals. SBA is waiving the requirement that borrowers must look for other funds before trying to obtain SBA fundingRehiring- you will have until June 30, 2020 to restore full time employment and salary levels for any changes made between 2/15/2020 and 4/26/2020 in order to receive full payroll forgiveness.Applications should be submitted with local SBA lenders Payroll calculation on next page Release of Tax Return Transcripts - IRS Form 4506-T – (IRS%20Form%204506T).aspx?pt=Business&ff=true&sp=1Self-Employed/ Partner PPP LoansSelf-Employed – No EmployeesSchedule C Net income for 2019 (up to $100,000) – Line 31 $100,000 Max AnnualDivide by 12 months $8,333 Max MonthlyMultiply result by 2.5 $20,833 Max LoanResult – Maximum loan amountSelf-Employed – With Employees Schedule C for 2019, Line 31 – Maximum $100,000 $100,000 Max2019 Employee Wages, Tips, Ins. And Benefits (3 employees) in 2019 (940/941) - $120,000Divide $220,000 by 12 = Average Payroll - $ 18,333/Mo.Multiply Result by 2.5 = $45,833 Max LoanLoan ForgivenessMust maintain FTE level as of 1/1/20 – 2/29/20 OR 2/15/19 – 6/30/19 Full time equivalent calculation provided by ? of Payroll: Your loan forgiveness will also be reduced if you decrease salaries and wages by more than 25% for any employee that made less than $100,000 annualized in 2019 ?Have until June 30, 2020 to re-hire laid off employeesDebt forgiveness reduced to extent more than 75% of the loan proceeds are used for non-payroll cost-251460259715002. Long-Term Economic Injury Disaster Loans and Loan Advance- Max of $2,000,000 Funds come directly from US TreasuryBorrowers are encouraged to apply for a $10,000/ $15,000? grant along with the EIDL application to cover immediate needsBorrowers can apply for both an EIDL and PPP loan – but only one loan outstandingTerms up to 30 yearsInterest Rates capped at 2.75% for Non-Profits and 3.75% for small businessesApplications should be submitted directly on SBA website. SBA 7(a) Loan Program- Max of $5,000,000All-inclusive loan program deployed by lending partners for eligible small businesses within the U.S. States and its territories. The uses of proceeds include: working capital; expansion/renovation; new construction; purchase of land or buildings; purchase of equipment, fixtures; lease-hold improvements; refinancing debt for compelling reasons; seasonal line of credit; inventory; or starting a business.Credit and eligibility decided by SBA. Types of SBA Loans (Existing Programs BEFORE CV-19)There are six (6) types of SBA loan programs:Type of LoanUsageSBA 7(A) LoansMost popular overall - Working capital up to $5 million (both line and term)SBA CDC/504 LoansPurchasing owner-occupied commercial real estateSBA CAPLinesCompanies that need a line of credit SBA Export LoansExporters that need to finance their export activitySBA MicroloansBusinesses that need a smaller amount of working capital up to $50,000SBA Disaster LoansCompanies that have been impacted by a declared natural disaster SBA 7(A) LoansMaximum loan amount$5 millionMaximum SBA guarantee %85% for loans up to $150,000 and 75% for loans greater than $150,000 (e.g., up to a maximum federal guaranty of $3.75m for a $5m loan)Interest rateInterest rates are negotiated between the borrower and the lender, but are subject to SBA maximums, which are pegged to the prime rate, the LIBOR rate, or an optional peg rate. Interest rates may be fixed or variable.Maturity Terms10 years for equipment10 years of working capital or inventory loan“Small Business” QualificationsTo be considered a “small business”:the size of the company alone (without affiliates) must not exceed the size standard designated for the industry in which the applicant is primarily engaged; andthe size of the company combined with its affiliates must not exceed the size standard designated for either the primary industry of the applicant alone or the primary industry of the applicant and its affiliates, whichever is greater.The size standards for the Disaster Loan Program make reference to the North American Industrial Classification System (NAICS) and are based on either the number of employees or annual receipts, depending upon the industry. The size standards are found at the following SBA regulations: . The concept of “affiliation” is potentially critically important especially for portfolio companies of private equity firms because the company may lose its “small” status if it is considered to be affiliated with other entities, including its private equity parent and other portfolio companies. Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. The principles SBA considers to determine affiliation are broad and encompass concepts beyond ownership of the company and are fact-specific. There are extensive regulatory provisions relating to affiliation and exceptions from being deemed an affiliate in 13 CFR § 121.03. For example, venture capital operating companies (VCOCs) are exempt (see 13 CFR § 121.03(b)(5)(i)). but there is no comparable exception for private equity firms that are not VCOCs. This raises questions as to whether a non-controlling private equity holder would be considered an affiliate by the SBA.For Disaster Loans, the following link addresses how “affiliation” is defined: Eligible Businesses Eligible businesses must:Operate for profitBe engaged in, or propose to do business in, the U.S. or its territoriesHave reasonable owner equity to investUse alternative financial resources, including personal assets, before seeking financial assistanceIneligible Businesses Ineligible businesses include those engaged in illegal activities, loan packaging, speculation, multi-sales distribution, gambling, investment or lending, or where the owner is on parole.Use of ProceedsTo establish a new business, assist in the operation, acquisition or expansion of an existing business, or purchase an existing business. Buy out a partner by an existing owner (loans cannot be made to a borrower to purchase part of a business in which it has no present interest) To purchase land or buildings, to cover new construction as well as expansion or conversion of existing facilities; To acquire equipment, machinery, furniture, fixtures, supplies, or materials; For long term working capital including the payment of accounts payable and/or for the purchase of inventoryTo refinance existing business indebtedness this is not already structured with reasonable terms and conditionsConvert short term working capital debt into long term working capital debt improves financial conditionRevolving lines of creditUp to 10 years (permitted only under a submission for a SBA CAPLines loan)FormsSBA Form 1919 and SBA Form 1920 are required for every loan (other SBA Forms may be required). Forms are available at the following link: . CollateralLenders are not required to take collateral for loans up to $25,000. For loans in excess of $350,000, the SBA requires that the lender collateralize the loan to the maximum extent possible up to the loan amount. If business fixed assets do not “fully secure” the loan the lender may include trading assets (using 10% of current book value for the calculation), and must take available equity in the personal real estate (residential and investment) of the principals as collateral.GuarantorsEntities or persons owning greater than 20% of the borrower must provide a guaranty.Utah Small Business Loan Program: Under 50 employees. Tax Due DatesFederal, California, Utah income tax payments and filings are deferred until July 15. This impacts 2019 extension payments.2020 Q1 payments extended to July 15.States that are not following the Federal Due Date for filing are: AL, AR, CO, ME, MN, NE, NJ. Delaware is due Apr 30, Idaho June 15, LA May 15, Mississippi May 15 and VA is due May 1st.Gift and GST tax returns and payments that would have been due by April 15, 2020, have been postponed and the new filing and payment deadline is July 15, 2020.Small Businesses with under 500 EmployeesH.R. 6201 – Families First Coronavirus Response Act (Enacted into Law) (“FFCRA”) (March 18, 2020)FFCRA applies to small non-governmental employers – those with fewer than 500 employeesAttribution rules may apply and disqualify PE and VC funds.FFCRA requires covered employers to provide limited paid leave benefits to employees who are affected by the coronavirus pandemic. Under the law, the US Secretary of Labor can exempt employers with fewer than 50 employees from the requirements to provide sick leave (but not paid family leave).Small non-governmental employers are given tax credits and federal payroll-tax relief to help pay for the mandatory benefits. The credits are allowed only to wages paid with respect to the period beginning on March 27,, 2020 (date selected by the US Secretary of the Treasury) and ending on December 31, 2020. Sections 7001(g), 7002(e), 7003(g), and 7004(e). Because the credits are refundable, if your credit exceeds the taxes owed, the government will pay you the excess. To properly claim the credits, taxpayers must maintain whatever documentation the IRS requires in future guidance. Paid Sick Leave for WorkersFor COVID-19 related reasons, employees receive up to 80 hours of paid sick leave and expanded paid child care leave when employees' children's schools are closed or child care providers are plete CoverageEmployers receive 100% reimbursement for paid leave pursuant to the Act.Health insurance costs are also included in the credit.Employers face no payroll tax liability.Self-employed individuals receive an equivalent credit.Fast FundsReimbursement will be quick and easy to obtain.An immediate dollar-for-dollar tax offset against payroll taxes will be providedWhere a refund is owed, the IRS will send the refund as quickly as possible.Small Business ProtectionEmployers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed, or child care is unavailable in cases where the viability of the business is threatened.Easing ComplianceRequirements subject to 30-day non-enforcement period for good faith compliance efforts.Unemployment Benefits?Who is Eligible: Expanded to include self-employed workers, independent contractors, and freelancers (the “gig economy”).?How Much: An additional $600/week for 4 months on top of state benefits. Benefits are extended to 39 weeks. (Many states, including California, normally limit benefits to 26 weeks.)To take immediate advantage of the paid leave credits, businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form that will be released next week.Payroll Tax Employers can defer their share of Social Security taxes and Tier 1 railroad retirement tax payments after March 27, 2020 till December 31, 2020. Payments can be made in 2021 and 2022.Self-employed Individuals can defer the payment of 50% of their self-employment taxes related to SS taxesDeferred payroll taxes are due 50% December 31, 2021 and 50% December 31, 2022.Taxpayers receiving an SBA loan under the CARES Act are eligible for the employer payroll tax deferral. However, if the taxpayer subsequently has a portion or all of such loan forgiven, the taxpayers ability to continue to defer the 2020 employer payroll taxes unit designated payment dates will be terminated.Payroll Tax Credits?100% credit for qualified sick leave wages paid by the employer in the calendar quarter.Applies to employers with 500 or fewer employees that need to be employed 30+ days. 2 weeks of paid sick leave and up to 12 weeks of paid medical leave. Sick leave paid at usual rate but limited to $511/day. Family leave is paid at 2/3’s rate up to $200 day. Family leave wages will be eligible for 100% credit against employers payroll taxes. Max $10k. ?For Self-EmployedSimilar credit for self-employedUp to 2 weeks of sick pay based on average payUp to 12 weeks of family leave at 2/3 of normal rate. Need to comply with self-isolation or care of a child due to school closure. Same rates at $511/day for sick leave and $200/day for family leave. Retirement Plan LoansPlan sponsors may permit participant loans taken on or before the date that is 180 days after enactment of the CARES Act, or September 23, 2020, up to a maximum amount of $100,000 or 100% of the participant’s account balance (increased from $50,000 or 50% of their account balance).Substituting ‘‘the present value of the non-forfeitable accrued benefit of the employee under the plan’’ for ‘‘one-half of the present value of the no forfeitable accrued benefit of the employee under the plan’’.Coronavirus-related distributions are available from 401(k), 403(b), and governmental 457(b) plans.The aggregate amount of coronavirus-related distributions received by an employee from all plans maintained by an employer (and any member of any controlled group that includes the employer) cannot exceed $100,000.Coronavirus-related distributions may be repaid to the plan within three years. Amounts repaid are treated as a rollover contribution to the plan and are not subject to the annual contribution limit. Plans sponsored by private-sector employers must be amended by the end of the 2022 plan year to provide for coronavirus-related distributions retroactively; governmental plan sponsors have until the end of the 2024 plan year to amend their plansEmployer Education AssistanceUnder the CARES Act, Employers with Educational Assistance Programs under Code section 127, such as tuition reimbursement plans, can make tax-free payments to reimburse an employee, or pay directly to the lender on behalf of the employee, amounts to repay a qualified student loan, up to the maximum of $5,250. This applies for student loan payments made before January 1, 2021, for loans that qualify for a tax deduction under Code section 221, although the deduction is not available to the extent an employer reimburses or makes loan payments under this provision.CARES Act and the NOL Carryback for Corps, LLCs and PartnershipThe CARES Act now allows for NOLs incurred in 2018, 2019 or 2020 to be carried back up to five taxable years preceding the taxable year of the loss. Depending on the provisions in the applicable transaction agreement, sellers may now be entitled to additional cash refunds that were not previously anticipated at the time of the closing. Moreover, being able to carry back an NOL up to five years also means that some or all of taxes that are recoverable will be in years when the corporate tax rate was 35 percent rather than 21 percent, thereby increasing the value of the NOL.Transactions involving the purchase and sale of partnerships and limited liability companies taxed as partnerships, S corporations, or, in most cases, subsidiaries of a larger consolidated group, as well as transactions structured for federal income tax purposes as asset purchases, typically will not be affected by the modification of the NOL rules in the CARES Act.Businesses and their owners should evaluate the potential benefits of carrying back any recent NOLs and review past transaction agreements to determine how any tax refunds resulting from these CARES Act provisions should be allocated between buyers and sellers. “The CARES Act provides that NOLs arising in a tax year beginning after December 31, 2018 and before January 1, 2021 can be carried back to each of the five tax years preceding the tax year of such loss. (Code Sec. 172(b)(1)?as amended by Act Sec. 2303(b)(1))The CARES Act temporarily removes the taxable income limitation to allow an NOL to fully offset income. (Code Sec. 172(a), as amended by Act Sec. 2303(a)(1))Pass-Thru Loss Liberalization (Amended Return Potential)The CARES Act temporarily modifies the loss limitation ($250,000/ $500,000) for non-corporate taxpayers so they can deduct excess business losses arising in 2018, 2019, and 2020. (Code Sec. 461(l)(1), as amended by Act Sec. 2304(a))Liberalized Interest Expense Provisions The CARES Act temporarily and retroactively increases the limitation on the deductibility of interest expense under?Code Sec. 163(j)(1)?from 30% to 50% for tax years beginning in 2019 and 2020. (Code Sec. 163(j)(10)(A)(i)?as amended by Act Sec. 2306(a)).” (See special rules for partnerships.)1031 and Opportunity Zone Timing Relief? Maybe Individual Tax Provisions Individual Rebates. $1,200 -$2,400 nontaxablethe min amount is $600 - $1,200$500 per Qualifying childrenTP has to have income over $2,500 or tax liability greater than zero5% reduction at $75,000 (MFJ $150,000), (HH $112,500)No nonresident aliens Tax-Favored Withdrawals from Individual Retirement Plans. Up to $100,000 Taxpayer has the coronavirus Taxpayer’s dependent has the coronavirusTaxpayer’s income was effectedRepay within 3 years, can start when distribution is received, cannot exceed distribution amountTreat as normal distribution when repaid within 60 day rule. Individual may recontribute the amount of the coronavirus distribution over 3 yearsNo 10% penalty for Early Withdrawal if coronavirus related.No Withholdings necessary The individual includes the Covid-19 –related distributions in gross income ratable over calendar years 2020, 2021, and 2022. The Covid-19 distribution will be treated as a distributions as a rollover contribution to an eligible plan or IRA within three years of the distribution.Temporary Waiver of Required Minimum Distributions from Retirement Plans. No RMD required in 2020 – 72 or older in 2019 (unless first year for RMD)If taxpayer took their RMD already taxpayer can contribute it back within 60 days “If the effects of the pandemic dropped you into a lower tax bracket, it might make sense to take the RMD (and perhaps a bit more) out of the IRA this year while you’re in a lower tax bracket.” ForbesCharitable Deductions. Non-itemizers can take $300 charitable donation Suspension of limitations on charitable donationsNot counting donations to a DAFFOOD INVENTORY.—In the case of any charitable contribution of food during 2020 to which section 170(e)(3)(C) of the Internal Revenue Code of 1986 applies, subclauses (I) and (II) of clause (ii) thereof shall each be applied by substituting ‘‘25 percent’’ for ‘‘15 percent.’’’Amendments to Personal NOL Usability The CARES Act provides a temporary five-year NOL carryback for most taxpayers, which may entitle taxpayers to significant tax refunds. The Tax Cuts and Jobs Act of 2017 (TCJA) repealed the carryback of NOLs (but enabled taxpayers to carry forward NOLs indefinitely) and limited the deduction of NOLs to 80 percent of taxable income.? Prior to the TCJA, taxpayers could carry back NOLs for two years and carry forward NOLs for 20 years to offset up to 100% of taxable income in each year.The CARES Act provides that NOLs incurred in 2018, 2019, and 2020 may be carried back to offset taxable income earned during the five-year period prior to the year in which the NOL was incurred.? The CARES Act also temporarily removes the taxable income limitation, therefore allowing taxpayers utilize NOLs to offset 100 percent of taxable income in tax years 2018, 2019, and 2020. This change affects taxpayers who are otherwise profitable but, as a result of the current COVID-19 crisis, will have a NOL for the current year. Those taxpayers will be able to carry back the current year NOL up to five years and recover income taxes paid in those years. Losses incurred in tax years beginning before January 1, 2018 may be carried forward to tax years beginning after December 31, 2020 without being subject to the 80% income limitation. In addition, as discussed below, the change may provide an opportunity for corporations that have been sold since January 1, 2018 – and, by reason of deductible transaction-related expenses, had an NOL for the year of the sale – to carry that NOL back as well.?Prior to TCJATCJACARES Act CarrybackTwo taxable yearsDisallowedNOLs incurred in 2018, 2019 and 2020 may be carried back five taxable yearsCarryforwardTwenty taxable yearsNo limitationNo limitationTaxable Income Limitation NOL deduction up to 100 percent of taxable incomeNOL Deduction limited to 80 percent of taxable incomeIn 2018-2020, NOL deduction up to 100 percent of taxable income; after 2020, NOL deduction limited to 80 percent of taxable incomeStudent Loans.The CARES Act suspends payments on all federal student loans held by the U.S. Department of Education for six months. So, if taxpayer loans are eligible, the taxpayer may stop paying student loans through September 30, 2020. This law also waives student loan interest on qualifying federal student loans through September 30, 2020.The payment suspension and interest reduction are automatic; taxpayer doesn’t have to request them. The CARES Act applies to Direct Loans, as well as FFEL loans, but only those FFEL loans that are owned by the U.S. Department of Education—not FFELs that are owned by other entities. Borrowers with private loans and Perkins Loans held by entities other than the Department of Education also don’t get relief under the plan.Check with your servicer or go to to find out whether the Department of Education or a different entity is the holder of your student loans.Debt ReliefThe CARES Act, if taxpayer makes an agreement with a creditor to defer one or more payments, make a partial payment, forbear any delinquent amounts, modify a loan or contract, or get any other assistance or relief—called an "accommodation" under the law—because taxpayer was affected by COVID-19, that creditor can't report the account as delinquent to the credit reporting agencies if taxpayer wasn’t already behind.No Foreclosure or Foreclosure-Related EvictionsWho is Eligible:? Borrowers with federally-backed mortgages who claim they were “harmed by the coronavirus outbreak.”? This includes “multi-family borrowers” as defined by the Act.?What Happens:? As of March 18, 2020, mortgage servicers cannot initiate foreclosure proceedings or implement foreclosure-related evictions during the “covered period.”? Borrowers get up to 360 days of mortgage forbearance.CONCLUSION: Tax Planning & Financial Moves To be discussedOther Resources:Small Business Administration Resource page Links: discussing CARES act and Tax Exempt Organizations (Link to Seyfarth Shaw site)COVID-19_CARES_Seyfarth Shaw LLP_Nonprofit Guide to the CARES Act_Including Loans_LINKAlert regarding COVID-19 relief choices and offsets of benefits (covers CARES, FFCRA & SBA Loans)COVID-19_CARES_FFCRA_ SBA_HCVT_Internal Alert_Choices to be Made under COVID-19 Relief Laws_3.31.20Alert regarding extension of Gift and GST Tax filing and payment datesCOVID-19_Estate, Gift & Trust_HCVT_Tax Alert_IRS Postpones due date for Gift (and Generation-Skipping Transfer) Tax returns with Notice 2020-20_3.30.20Alert discussing the election out of 163(j) for real estate businessCOVID-19_CARES_163j_HCVT_Internal Alert_Effect of CARES Act on Whether to Elect Out of 163(j) for Real Estate Businesses_3.29.20Alert discussing CARES impact to loss limitation rules for real estate business owners; section 461(l)COVID-19_461(l)_HCVT_Impact of CARES Act Changes to Loss Limitation Rules for Real Estate Business Owners_3.28.20Bill H.R. 748 COVID-19_CARES_Bill H.R. 748_The CARES Act_3.27.20 ................
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